The 40th Anniversary of Roe v. Wade

October 11 2012 is the 40th anniversary of the re-arguments (the second round of oral arguments) in Roe v. Wade and Doe v. Bolton. Because there was no evidentiary record in either Roe or Doe, the oral arguments are essential to understanding the Justices’ thinking and the mistakes they made in reaching such unprecedented and sweeping decisions that sparked 40 years of social, medical, constitutional and political controversy.

The audios and transcripts

Due to the relative inaccessibility of the official transcripts, and of the inaccuracies in available copies of the transcripts of the arguments in Roe and Doe, we have posted corrected copies of the transcripts of the two arguments in Roehere and transcripts of the two arguments in Doehere. These corrected copies are based on a comparison of the official transcripts with the audios.

The audios can be found at www.oyez.org. The audios of the first and second arguments in Roe (No. 70-18) can be found here.

The audios of the first and second arguments in Doe (No. 70-40) can be found here.

The Setting

The first oral arguments in Roe and Doe had taken place on December 13, 1971. Only seven justices sat. Justices Black and Harlan retired due to ill health in September 1971, and the vacancies were not filled until Justices Powell and Rehnquist were sworn in on January 8, 1972. After considerable internal strife, the Justices voted in June 1972 to rehear the cases.

The oral arguments in both of the abortion cases were burdened from start to finish by two major problems: no trial record of factual evidence and much time spent on procedural and jurisdictional questions that prevented focus on substantive historical, medical and constitutional questions. These plagued both the oral arguments and the Justices’ deliberations between December 1971 and January 1973 and thus fundamentally shaped the Justices’ decision-making and the opinions in Roe and Doe.

The Lack of Any Record

There were no trials or evidentiary records in Roe or Doe. Both had been decided as facial challenges on motions to dismiss. As the Texas Assistant Attorney General said, “The record that came up to this Court contains the amended petition of Jane Roe, an unsigned alias affidavit, and that is all.” As the Georgia Assistant Attorney General told the Justices, “That, again, is not in the record because there was no evidence presented.”

The First Arguments

The first arguments were consumed with procedural and jurisdictional issues because the Justices had originally taken Roe and Doe to decide the application of Younger v. Harris (1971), involving federal court interference in pending state court criminal proceedings. For example, so much of the first Doe argument in December 1971 was spent on procedural issues that Margie Pitts Hames, the attorney for the Georgia plaintiffs, made no statement in her first argument about the constitutional basis of her case or of a right to abortion. And no justice questioned this. There were virtually no questions on the source of any constitutional right to abortion and almost no questions on the historical basis for such a right. Hames left this fundamental issue to her one minute rebuttal (to Georgia’s attorney Dorothy Beasley), admitting that “We have not designated a constitutional basis for our case.” So, Hames gave a one sentence answer: “I would like to say that it is — we contend that the procedural requirements infringe Due Process and Equal Protection, and that the right of privacy, as enunciated in Griswold, of course, is our basic reliance.” That was the extent of the constitutional discussion in the Georgia case at the first oral argument in Doe.

The Re-Arguments on October 11, 1972

The second round of arguments focused more than the first on substantive medical, social and constitutional issues. There were seven major themes in the arguments—measured by the time spent on them—though they never got the time they deserved:

factual and medical assertions about abortion;

the historical purposes for the state abortion laws;

the legal status and extent of legal protection of the unborn child, including whether the child was a legal or constitutional person;

the medical context for the legal protection of life;

why abortion law treated women as victims and not accomplices;

the exceptions for rape, incest, etc. in Georgia’s law;

the difference between abortion laws and laws regulating surgery.

To get the fullest understanding of the arguments in Roe v.Wade and Doe v. Bolton, it is best to listen to the audios while reading the transcripts.